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Home My WebLink About1993-12-13 94-44 ORDERQf.vu Date 12Action 3-93 Item No. 94-66 Item/Subject: �t Autllaiziry t 1Yansfm of $3,500.00 f the (;anexal cent y A7anmt fa the Purpose of Semaing Tile Responsible Department: B a wa� Legal Commentary: M }vu axe all well aware, t}a ➢laViwrlm building }as he®s vacant far etas rise. Ifficently, tta option which vets hard by Sang@' WaTexwcla Aespciatimt hoe erpixed. Ae a me t, it appears Tgat The buildi N will conCixwe in its vacant status for at least a,paz of t . Woe iia peat yass, Ue City hoe a naidse of ]amk-iau to Ue builds . 1fii8 h58 xeaulrstl in INblic Wale returssixg to the sire m xnmPl.One occaeior�s in oxdaz to zeesvice Ue hAldir. . Civets U nor;t m, pxblaia ae hauE bews having, the Legal Dep.,.w.e.n has rswverded that wa m stnathing an a voxe pemanent basis to setae the wa[>n• 1ffi facuity ani to protect U city .against laotmstial liability. Attached yea will find a t A stwp£al width tis Iloc ;rile City's possible liability aseoclarerl with the warexxoelc and fxn wld myR cur ixdng tie steps which we pxoPotc to rates to sa-um tae facildty. lhia hoe been xevittwd the M ipal (kmeti,.n= Cmmittce, std they nets xa'vm®tled yrns approval .^/ Defart .Head ManaWr's CPmmems: It has betas apparent that to teles steps to sorra P®esv¢ly ansae the Waterwrite building. I would supprn the proposal outl in Me. NCydy's. amn. TFe omy availaM1le ecvsxoe of fu dL foe this pmjat 18 tie city's General need cmt'� mvlmc. 9 C'Iry.eawsn Auociated Information: Cas ; �aaiaa frac S a Stlmpfeli Nem]IaMlnal faro Sudq Approval: DGe< L pI APWovel: I clrysdmam Intr ruced For Passage First Reeding Page _ of El Referral Assigned to CounNor Sullivan December 13, 1993 CITY OF BANGOR ITIREJ WT11CXg....... ........ ...__. a r3aing..toe. Tranetrs•..of..$3,500..00. f cau aloe al By the CKY Coywil oft Cay ofBanyor: ORDERED, TUT tle aorsmt of $3,500.00 be tvanafensl fr® tits City's General Aud CwR� %ccvnt to t1te following accamt: 1& 2-03.01 - $3,500.00 In city Council December 13, 1993 Conflict for councilor Baldacci, Motion for Passage made by councilor Sullivan 2nd by Councilor Cohen Motion Passed city Clerk 94-44 Q R D E R Title, Anuhonzinp the, T.ra.nsfe[, pf,;8,9p9, from the General contingency Account for th Purpose of Securing, che, BPngor A�eaigOnedtoo l///�,'N^ Councilman 94-44 MEMORANDUM .December 7, 1993 T0: Municipal Operations Committee FROM: Erik Stump£el, City Solicitor RE: Bangor Waterworks Building - Liability Issues The purpose of this memorandum is to outline for the Committee the City of Bangor's legal liability for accidents occurring on the City's Bangor Waterworks property and, more generally, on other properties owned, but not actively maintained by the City. The City's basic liability flows from provisions of the Maine Tort Claims Act, 14 BREA S 8101 et sea. The Maine Tort Claims Act provides general immunity for the State, its agencies, and municipalities, from suits alleging tort claims (i.e., civil wrongs), in section 8103, as follows: 5 8103. Immunity from suit 1. Temerity. Except as otherwise expressly pro- vided by statute, all governmental entities shall be immune from suit on any and all tort claims seeking recovery of damages. Nhen immunity is removed by this chapter, any claim for damages shall be brought in accordance with the terms of this chapter. Notwithstanding the general rule of immunity under S 8103, the statute carves out specific exceptions to immunity under S 8104-A, including a potential liability for negligent acts or omissions in the maintenance of public buildings, as follows: S 8104-A. Exception to iwau:ity 2. public buildings. A governmental entity is liable for its negligent acts or omissions in the construction, operation or maintenance of any public building or the appurtenances to any public building. Notwithstandinq this subsection, a governmental entity is not liable for any claim which results from: A. The construction, ownership, maintenance or use of: (1) Unimproved land; (2) Historic sites, including, but not limited to, memorials, as defined in Title 12, section 601, subsection 1; or (3) Land, buildings, structures, facilities or equipment designed for use -2 - primarily by the public in connection with public outdoor recreation; B. The ownership, maintenance or use of any building acquired by a governmental entity for reasons of tax delinquency, from the date of foreclosure and until actual possession by the delinquent taxpayer or the taxpayer's lessee or licensee has ceased for a period of 60 do"; or C. The ownership, maintenance or use of any building acquired by a governmental entity by eminent domain or by condensation until actual possession by the former owner or the owner's lessee or licensee has ceased for a period of 60 days; The Bangor Waterworks buildings are -public buildings- within the meaning of this exception. The Bangor waterworks property is also designated as an "historic landmark" Order Chapter VIZ, Article 4, Section 5.3.13, Bangor City Ordinances. This designation by the City may confer immunity notwithstanding the public building exception under 5 8104-A(2)(A)(2) above. However, there are no reported Law Court cases confirming that "historic sites" under the Maine Tort Claims Act include locally -designated historic landmarks. Assuming that the City of Bangor may be liable under the "public buildings" exception to governmental immunity, the Maine Tart Claims Act tape the Cily'.s liability for any and all injuries at $300,000 per occurrence. Liability in such cases would be established upon the same tort law principles that apply in civil suits between private parties. Sketched very broadly, this means that the City could be found liable for injuries sustained by individuals entering the waterworks buildings in the following instances: l0uring the last session of the Legislature, a proposal to increase this amount to $l million per claim was defeated on the floor of the Legislature. Mder current law, 14 MRSA S 8116, the $300,000 liability cap may be exceeded where the State, Stats agency or municipality has obtained insurance with a higher liability coverage limit. -3- 1. The individual entered with the City's express permission or at our invitation, and subsequently received an injury due to an unsafe condition in the building concerned; 2. The City knew of a latent hazard or defect within the building, and failed to post warnings to known trespassers or permissive users; 3. The City failed to warn known trespassers o Permissive users of the building's hazardous condition; 4. The City failed to take reasonable precautions to prevent access to the building by minors for whom it may constitute an attractive nuisance, the minor subsequently sustained an injury due to an unsafe condition in the buildings or 5. The condition of the building was held to constitute a public nuisance, and the individual bringing suit was specially injured. The 'City of Bangor is not potentially liable for injuries occurring as a result of maintenance, use, etc. of the unimproved portions of the Bangor Waterworks site. A= 5 8104-A(2)(A)(1). Nor is the City liable for injuries arising out of permissive recreational use of the Waterworks property. See 14 MRSA S 159-A, copy attached. This means that a fisherman or boater crossing the site to use the Penobscot River would be barred, in moat instances, from bringing suit against the City for injuries sustained on the Waterworks site. Finally, under S 8109-B(6) of the Maine Tort Claims Act, the City would not be liable for injuries sustained on the Waterworks property while the property was under Lease to another organization for its own purposes. The City of Bangor currently carries general liability insurance with coverage limits of $300,000 per claim/$1 million annual aggregate. Our insurance carrier arranges for the defense and settlement of covered liability claims. Nonetheless, a major liability suit can impose significant burdens on City personnel in answering legal discovery requests, attending depositions, and providing testimony at trial. We are currently involved In one such suit arising out of a 1991 fall at the City's Finer Building.2 Multiple claims may also have the effect of downgrading the City's insurance loss rating, thereby increasing ;S b� *J 40NY Cooped aj/sd PW6/. E9 ra/$/53 we 21n addition,/routinely receive notices of claim in 6-10 slip -and -fall cases per year for incidents occurring on actively maintained City premises, e.g., at Bass Park and BIA. -4 - our liability coverage premium caste, which currently exceed $250,000 per year. Finally, aside from legal liability issues, the City has reason to be concerned that the City's maintenance of public buildings not become a source of injury to Bangor residents. Accordingly, I recommend that .the Committee and Council authorize funds necessary to .limit access to the Bangor waterworks property including, at a minimum, thefollowing% (1) Fencing off or boarding up all entrances, windows and access points at ground level; and (2) Posting the property "no trespassing' with clearly visible signs indicating that the Waterworks buildings are unsafe structures. to Attachments pc: Edward Barrett, City Manager Ken Gibb, Director of Community 5 Economic Development 94-44 MEMORAWDDM Dece Qd 1993'""_ T0: Bob Farrar, Director of Administration�i#°+, PR: Rod McKay, Community Development Director REx Waterworks Facility - The following minimum actions are recommended to secure the Waterworks Facility: - 1. Install approximately 140 feet of new or used chain link fence at an estimated unit cost of $12 per lineal foot, along with 2 gates, at a total estimated cost of $2,000. Recommend the fence be installed by a private contractor s fence installers can complete the installation for less than Public Works. 2. Clean up of area, and removal of trees and brush in front of old pumphouse building, at an estimated cost not to exceed $1,000. Work to be performed by Public Works. 3. Paint unpainted doors and windows, including boarded up doors and windows, at an estimated coat of $200. Work to be performed by Public Works. 4. Budget a contingency of $300. Total estimated cost and recommended budget - $3,500. This work is not eligible for Community Development funding. No funds are currently budgeted for above recommended work to secure the facility. it is recommended that a budget of $3,500 be established to secure the facility in order to minimize the City's liability. , m 'Edward E. Barrett, City Manager Erik Stumpfel, City Solicitor Arthur Stockus, Public Works Director Ken Gibb, Director of C & ED